As we already know India is one of the earliest parties to take active participation in the ‘Convention for The Suppression of the Traffic in Person and the exploitation of the Prostitution of Others 1949’. Our constitution also provides an assurance for every living person to be free from exploitation. Article 23(1) of our constitution deals with the provision of trafficking in human beings and forced labour. It also proclaims that if any human being forces another for labour or traffic they shall be punishable by law. Right against exploitation is a fundamental right under part III of our Constitution. Our Constitution also affirms every person with – right to life and personal liberty (Article 21), the right to constitutional remedies (article 226), right to freedom (Article 19) and the right to equality ( article 14 and 15).
ITPPA 1986 is the later amendment version of SITA 1956 which was originally addressed especially for the purpose of suppression and controling of trafficking and prostitution all over the country. SITA majorly focused on street prostitutions and not for the prostitution that occurs behind a “huis clos” which was impediment for its downside.
In 1960s the SITA created numerous controversies regarding removal of prostitution. Majorly section 20 of this act was the promoting reason behind creation of these controversies. The High Courts of various States objected to this statute and considered it as a violation of article 14 and article 19(1) (d) and (e) and consequently the matter reached the Supreme Court.
In the case of Kaushalya v. State the section 20 of SITA was invalidated by the High Court as it violates the constitutional rights provided to us in our Nation. Although the topic of prostitution was not explicitly mentioned but Justice W. Broome had stated that any commerce or profession that bothered with “inherently immoral activity like prostitution,” then “it is open to the state to impose a total ban”. He further propounded that a woman prosecuted under section20 had no choice of revoking prostitution if the woman preferred to live and dwell under the administration of that areas magistrate. The magistrate had the authority to dislodge the woman if he discovers that she was earlier in the profession of prostitution i.e he can drive her out of that area, here the area does not just includes the town of the magistrate but also the entire district.
He wrapped up the case with the judgment of “the encroachment made by Section 20 on the fundamental rights of residence and free movement of the individual far outweighs the benefit likely to accrue to the public at large and cannot be deemed to be reasonable.” He included the overruling judgment that the magistrate had the power of discretion. Such unrestricted and irresolute power can be used according to the magistrate’s subjective satisfaction and can contravene Article14 of the Constitution.
In the case of State of Uttar Pradesh v. Kaushalya, (1964) it had six appeals in total filed by the state government of Uttar Pradesh before the Supreme Court with a bench of five Justices. The Supreme Court ignoring the significant and indispensable grounds of High court gave a unified judgment that segregated sufferers of prostitution on the basis of biasness. Justice Subba Rao stated that Section 20 does not contravene Article14 of our Constitution on the basis of “intelligible differentia” which states that there must be some analytical nexus between the grounds of categorization and the object intended to achieve. Justice Rao further protected encroachment of Article 19(1)(d) and (e) of the Constitution by Section 20 and proclaimed that Article 19(5) of the Constitution allows reasonable restrictions against these rights in the public interest.
Proposing that prostitution in streets is more detrimental than exploitation of sex within confined walls is an imprecise opinion of the Justice. The fact that he neglects the latter type of prostitution as a tolerable one without scrutinizing the pragmatic certainty and data about the physical and psychological torture the victims go through in brothels after they are trafficked and made slaves working for immoral intercourse.
Section 20 of SITA constrained the raucous punishment for the person harmed. Basically the infliction that was given to the offenders weren’t as harsh as the torments received by these victims. Abode expulsion was given only to the victims and not the offenders.
The provision violates Article 14 of the Constitution that ensures the right to equality before the law without any prejudice. Prostitution isn’t a crime that can be perpetrated single handedly as law is claiming it to be. It is conducted by an entire organization and the workers who are earning through the service of immoral intercourse are punished or claimed survivors or sometimes the culprits but originally it is the brothel owners and pimps who are benefiting through the victims’ enslavement. Whereas law isn’t punishing them like the prostitutes who are accused for servicing sex. The deficiency and fault of biasness in our legal system’s perspective has made the victims of prostitution as culprits due to the stereotypes the system has fabricated. If it had been corrected or improved then certainly it would have been possible to provide immunity to these victim prostitutes as well but only the pimp and police guarding such exploitation and traffickers are immunized and the victims are left neglected without fair justice.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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